Arizona Court Rules Against Imposition of Non-concurrent Assessments

The Court of Appeals of Arizona recently decided an appeal regarding aggravated DUI in the case State of Arizona v. John Patrick McDonagh. This is an interesting case that works in favor of DUI defendants. It arose when the State charged the defendant with four counts of aggravated DUI. These were all variations on the same facts, including: (1) drunk driving on a suspended license, (2) drunk driving with a BAC over .08 on a suspended license, (3) third instance of drunk driving within 84 months, and (4) driving with a BAC over .08 on a third offense.

The defendant was convicted of all four of these. During a sentencing hearing, the judge imposed a minimum mandatory 4-month term in prison followed by two years of probation. The court ordered the prison terms and the probation to run concurrently. It also ordered significant “Assessments” totaling $4,630 per count. From the way the court wrote the order, it was not clear whether these Assessments were imposed concurrently or if this was the sum the defendant had to pay per count.

The defendant appealed solely with respect to the issue of the Assessments. He argued that there shouldn’t have been four separate Assessments assessed for four felony convictions all arising from the same driving incident. He didn’t raise a constitutional issue, but rather a prohibition found in the state statutes. Specifically the code states, “[a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.”

The appellate court asked the parties to report how his payments were applied. The parties’ reports revealed that the court’s clerk applied the payment such that each dollar was credited to only one, not four counts.

At the outset, the court noted that imposing an unauthorized Assessment made a criminal sentence illegal. It also stated that, to the extent that the statutory prohibition applied, (1) the Assessments had to be “sentences” within the meaning of the code, (2) the convictions had to arise from a single act, and (3) no legislative act could have clearly overridden the code.

With respect to the first issue, the court reasoned that a fine is a criminal penalty that constitutes a “sentence”. Is an Assessment? The appellate court reasoned an Assessment may qualify if it is “a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime; (2) the money recovered goes to the people of Arizona and (3) the money is not a civil penalty or restitution to a crime victim.” The court concluded that using this three-part test, Assessments were sentences. They were pecuniary punishments. The money recovered from the assessments are paid to the people of Arizona. They don’t go to a victim.

Additionally, the drunk driving incident was a single incident. The appellate court reasoned that it was factually impossible to commit one of these counts without also committing the others. Finally, the statutes mandated that a court could not sentence a defendant with cumulative punishments unless the Legislature clearly intended it do so. The appellate court modified the sentence so that the Assessments would run concurrently.

There are many serious penalties to a DUI conviction in Arizona, but the above post shows that there are limits to the kinds of penalties you incur. If you are pulled over or charged with a DUI, you should contact an attorney with experience in DUI defense. It can make a big difference. Contact the Arizona DUI attorneys at the Law Offices of James Novak at 480-413-1499.